Obligation

OBLIGATION. - Obligatio in its very Latin etymology signifies, in an active sense, the act of binding or constraining, and in a passive sense, the feeling of being bound or constrained, or the bond or constraint itself. Its first figurative use occurred in Roman law, where it denoted a juridical relationship by virtue of which a correlativity of rights and duties is established between two or more subjects for a determined performance (cf. Justinian, Institutes, 3, 13). In an active sense, it came to be synonymous with creditum, and in a passive sense, synonymous with officium (duty). It is in this latter sense that the term obligation entered the philosophical vocabulary, indicating the moral bond or necessity deriving from the ethical law.

1. PHILOSOPHY. - In ethics (v. ETHICS), it is the moral bond that the law (v. LAW) produces in a free and responsible subject, determining in him the sentiment and the demand of duty. The concept of obligation, though already present in Greek thought, found its full philosophical elaboration only after Christianity, which studied it in the light of the doctrine of the human person and of the transcendence and personality of God. The principal questions concerning obligation regard the subject capable of duty (root of obligation), the binding value of the law (cause and foundation of obligation), and finally the very essence of the sentiment of duty (effect of obligation).

1. Subject of Obligation. - The subject of obligation can only be the finite spiritual nature, which, by virtue of the perfect immanence of its operative life, is capable of leading itself to the end that transcends it through the progressive enrichment of its interior virtuality. Non-spiritual beings are incapable of obligation because they essentially entail instrumentality and physical determinism (v. DETERMINISM) (Sum. Theol., 1ᵃ-2ᵃ, q. 1, a. 2). God, by virtue of the fullness of His being, cannot be the subject of obligation (cf. I. Kant, Critique of Practical Reason, trans. by F. Capra, 5th ed., Bari 1942, p. 95). The human person, as a finite spiritual nature, is radically capable of obligation; however, not all of its activity can be bound by obligation, but only that which depends on free volitional determination. Therefore, not only are the activities subject to the physical mechanism of material nature to be excluded in man, but also the essential inclinations toward self-perfection and happiness (appetitus beatitudinis). Such inclinations, in a certain sense, condition obligation and are not conditioned by it: they are, in fact, the very source of all volitional energy (ibid., q. 10, aa. 1-2). Obligation finds its content in them (ibid., q. 94, a. 2), and gives them that value by which the finalistic tendency becomes for the human spirit a "duty to be," and the love of the end transforms itself, for the will, into the duty to know and realize the means that lead to the end. To explain obligation through immanent inclinations means to destroy its concept: it would, in fact, be nothing but a blind sentiment or an impulsive instinct of power or a creative vital élan; physical determinism, therefore, never a source of duty, which necessarily leads to stepping outside the subject to establish an objective binding principle.

Those doctrines that deny human spirituality and freedom thus suppress the very possibility of obligation: materialism (v. MATERIALISM), evolutionism, sensism (v. SENSISM), positivism (v. POSITIVISM), and sociologism. They attempt to explain the existence of duty by resorting to physical, biological, psychic, or social laws. H. Spencer, for example (The Data of Ethics, London 1879, § 46), speaks of the association of ideas (v. ASSOCIATION OF IDEAS), of the struggle for life, of heredity. Contemporary sociologists derive duty from "social pressure," whereby individual life would be entirely conditioned by the life of the "group," the true subject of human activity (cf. L. Lévy-Bruhl, La morale et la science des moeurs, Paris 1903). Though they attempt to safeguard the subjective value of the individual, those theories that condition duty upon interior sentiments or impulses do not preserve the authentic concept of obligation. Hobbes (v. HOBBES) sees in the egoistic sentiment of fear the motive for contractual subjection to the absolute will of the sovereign. For A. Smith (Theory of Moral Sentiments, III, Edinburgh 1759, chaps. 4-6), reflection determines the passage from spontaneous and affective sympathy to the consideration of others' approval and thus to the formulation of rules that internally exercise that pressure which is called duty. M. Guyau (Esquisse d'une morale sans obligation ni sanction, Paris 1885) asserts that duty is nothing but an expression of vital power that has become impersonal through idées-forces, which provide such intoxication for struggle and risk that even the sacrifice of life appears as "an expression of life" (p. 250). A. Schopenhauer (v. SCHOPENHAUER, ARTHUR), in Über die Freiheit des menschlichen Willens, defends volitional determinism on the part of character; and in Über das Fundament der Moral, he affirms that from the sentiment of pity (Mitleid) derive justice and duty, which will then be surpassed by charity. F. W. Nietzsche (v. NIETZSCHE) exalts the vital power of the individual will: the morality of the common people is founded on duty, reducible to social pressure, while the morality of the Übermensch (v. SUPERMAN) finds its limits only in the fullness of the affirmation of its own creative power of even social values. H. Bergson (Les deux sources de la morale et de la religion, Paris 1932) distinguishes two types of obligation: one presents itself in the stylized and closed form of the morality of the multitude, as an effect of social pressure; the other is the fruit of an intuition by which the subject aspires to transcendence according to the vital élan that it feels immanent in itself and in all reality. Nevertheless, the root is always the same: "toute morale, pression ou aspiration, est d'essence biologique" (p. 103).

2. Cause and Foundation of Obligation. - The cause of obligation must be objective, categorical, and immanent to the person itself. Objective, insofar as no subject can bind itself, and nothing empirical can express absolute and universal principles. Categorical, since any condition does not absolutely engage the subject and would be reducible to a subjective principle. Immanent, because any extrinsic cause would be either physical determination or coercion, both of which destroy the autonomy (v. AUTONOMY) essential to the spirit and thus the very root of duty. In obligation, the human person (v. PERSON) expresses within itself a duality: it is at once binding and bound, an absolute and universal objective principle and a particular and contingent operative subject. It is binding insofar as, with its reason, it expresses the law (Sum. Theol., q. 90, a. 1). It is bound insofar as it feels the demand of duty. The question of the "foundation" of obligation thus arises: how, that is, human reason can dictate an absolute form that categorically binds the will. Already in Greek philosophy, human reason was considered as a finite participation in the universal Reason, and the moral law as an expression of the divine law. The Stoics, in particular, saw in the logos the foundation of the moral order, and in the wise man the one who, by living according to reason, realizes the harmony of the universe. However, it was Christianity that, by affirming the transcendence and personality of God, gave to the concept of obligation its full metaphysical foundation. The law is no longer an impersonal and necessary expression of the cosmic order, but the free and loving will of a personal God, who creates man in His image and calls him to participate in His own life. The foundation of obligation is thus found in the very nature of God, who, as Supreme Good, attracts the will of man, and in the nature of man, who, as a rational and free being, is capable of recognizing and adhering to the divine law. The moral law is thus the expression of the divine will, which is immanent in the human conscience as a natural law (lex naturalis), and at the same time transcends it as a positive law (lex positiva). The obligation that derives from it is therefore both immanent and transcendent: immanent, because it is rooted in the very nature of man; transcendent, because it refers to a superior and absolute principle, which is God Himself. This duality is resolved in the unity of the person, who, by adhering to the moral law, realizes his own perfection and at the same time fulfills the divine plan.

BIBL.:
Per la storia del concetto di o.: J. BREHIER, Histoire de la philosophie, II, Parigi 1938, pp. 345-356; E. BRÉHIER, La théorie des incorporels dans l'ancien stoïcisme, Parigi 1928; M. GUEROULT, L'évolution et la structure de la doctrine de la science chez Fichte, Parigi 1930; A. MANNO, Il problema morale in Kant, Roma 1948; G. DEL VECCHIO, Lezioni di filosofia del diritto, Milano 1947, pp. 123-145. Per la dottrina cattolica: S. THOMAS, Sum. Theol., I-II, qq. 90-108; J. DE FINANCE, Être et agir dans la philosophie de S. Thomas, Roma 1945; J. MARITAIN, La loi naturelle ou loi non écrite, New York 1951; R. GARRIGOU-LAGRANGE, Le sens commun, la philosophie de l'être et les formules dogmatiques, Parigi 1922.

A. MANNO

The Latin etymology of obbligazione (obligation) itself signifies, in its most immediate sense, a bond. Christian philosophy has thoroughly developed this concept, considering personal reason and natural moral law as a participation in God’s eternal Reason and law (cf. St. Augustine, De vera religione, chaps. 30-31, nn. 54-58; Sum. Theol., I-II, qq. 90-97). Many rationalist trends exclude any reference to God, appealing instead to an impersonal universal Reason—that is, to the complex of principles and norms that, by their immediate evidence, impose themselves upon every intelligence (cf. F. Buisson, Foi laïque, Paris 1912). Yet impersonal reason is a mere conceptual abstraction: objective truth implies a relation to the absolute intellect; a theoretical ideal that is intrinsically ineffective in binding the free will. The impersonal cannot, in fact, impose itself upon the person, who, as such, expresses the highest dignity in the order of beings (cf. R. Le Senne, Traité de morale générale, 2nd ed., Paris 1947, pp. 571-72).

For Kant, practical reason is in itself legislative and law—a pure, universal, and categorical normativity without content, a formal obligatory principle. Its validity imposes itself practically by its very nature; nor is it possible to establish its theoretical or empirical grounds without destroying it (Critique of Practical Reason, ed. cit., pp. 37-38). It reveals to the person, subject to the mechanism of empirical sentiments, their personality, by which they feel themselves to be an end and not a means, autonomous and perfectly free (ibid., p. 104). The concept of God does not ground obligation; rather, it is obligation that grounds the postulate of God’s existence, for through the pure intention of duty, the will becomes holy and acquires confidence in the Supreme Being: “only from a morally perfect (holy and good) and, at the same time, omnipotent will can we hope for the highest good, which the moral law makes it our duty to set as the object of our efforts, and thus we may hope to attain it through harmony with this will” (ibid., p. 155). The Kantian position is not only untenable because it posits a pure obligation without content, but above all because it leaves obligation itself without any foundation; it leads to pantheistic immanentism (v. IMMANENTISMO) or to a mere phenomenological analysis of subjective consciousness. Pantheistic immanentism finds its perfect elaboration in Hegel’s (v. HEGEL) panlogism (v. PANLOGISMO). It is the Objective Spirit that imposes itself upon the subjective spirit: it is the power of the ethical State that binds individuals, liberating them from their empirical subjectivity and leading them to the immediacy of the Absolute Spirit (cf. Grundlinien der Philosophie des Rechts, Berlin 1821, part 3, nn. 148-49). Modern value theory (v. VALORE) resumes Kant’s phenomenological analysis. Duty is the very law of freedom, which unfolds and asserts itself only in the act of positing ends or values: the normativity of consciousness is but an essential moment in the development of the axiological cycle (cf. R. Polin, La création des valeurs, Paris 1944). For W. Stern (Person und Sache, III, Leipzig 1924), value is the end of all life, and thus Introspektion, by which the ego (v. IO) affirms its value by making all other values its own (p. 353), represents the content of the categorical imperative (p. 89). Followers of existential spiritualism seek to ground the value-ego, which imposes itself upon the empirical ego, in the transcendent foundation of God (cf. R. Le Senne, Le devoir, Paris 1937; id., Traité de morale générale, 2nd ed., Paris 1947).

3. Effect of obligation

Moral law produces in the will an interior demand or duty that binds it, without necessitating it, in such a categorical manner that disobedience gives rise in the subject to a sense of guilt, remorse, and fear of a sanction proportionate to the absoluteness of the violated order (for the development of Greek thought on this subject, cf. C. Del Grande, Hybris, Naples 1947). According to empiricism, the sentiment of duty is nothing but a derivative of egoism or of an innate altruistic sense: one remains on the plane of physical necessity, even if admitting the intermediary of a hypothetical imperative. Rationalism, instead, appeals to logical necessity, whereby moral guilt comes to be identified with error, and the freedom and responsibility of the human person are thereby sacrificed (cf. E. Zeller, Vorträge und Abhandlungen, III, Leipzig 1884, p. 231). Kant identifies the sentiment of duty with respect for oneself, which the moral law produces in the will by virtue of its absoluteness. This is, first, a negative sentiment of humiliation; it then becomes a positive sentiment of esteem and admiration—that is, a recognition of the absolute dignity of one’s pure personality, perfectly free from the empirical. Respect produces interest in the law. Yet the nature of this causality cannot be rationally explained; it is admitted practically in the same way that the moral law itself is admitted (Critique of Practical Reason, ed. cit., pp. 95-96). The concept of moral commitment or interest has been extensively developed in contemporary philosophy as an essential subjective moment of freedom, considered as pure creative activity. Corresponding to it is the notion of aspiration, which Bergson posits as the demand produced by moral intuition and attraction—that is, as a “creative emotion” (Bergson, op. cit., p. 39).

The causality of reason over the will can only be situated on the plane of final causality. The will, in fact, can only be moved in function of its essential tendency toward the end—that is, in function of the love of the good (v. BENE). Obligation, therefore, is not a new form of causality but is the same good, which manifests itself not as merely convenient but in its absoluteness of right, whether this belongs to it intrinsically (natural law) or extrinsically (positive law). The absoluteness revealed through reason finds its correspondence in the will’s innate tendency toward absoluteness: God, who dictates His will in the moral imperative, is already present in the will’s inclination toward Him. It is in the light of the categoricity of natural law that the human person comprehends the full metaphysical value of their nature and its finalistic tendencies: in the will, a profound emotion awakens, which is desire for the absolute, fear of losing it, and commitment to attain II. Duty cannot, however, be reduced to a hypothetical imperative, as if the good imposed itself as a utility to be pursued in function of happiness. Nor can one speak of a categorical imperative in the sense of excluding the love of the end. The honestum imposes itself because it is itself in the light of the absoluteness of the end: the will must will it because it is good, and it is not good because the will must will II. The law does not operate directly upon the will but upon the good, insofar as it places it in an order of right, giving it the very character of divine absoluteness. This is expressed in the first moral principle, the source of every moral duty: “Bonum est faciendum et malum vitandum” (Sum. Theol., I-II, q. 94, a. 2).

BIBL.:
Per la storia del concetto di o.: J. Mausbach, Die Ethik des hl. Augustinus, Friburgo in Br. 1909; O. Schilling, Die Staats- und Soziallehre des hl. Augustinus, ivi 1910; J. Mausbach, Katholische Moraltheologie, I, Innsbruck 1918; G. Del Vecchio, Lezioni di filosofia del diritto, Roma 1930; R. Le Senne, Traité de morale générale, Parigi 1947; per la posizione kantiana: H. Cohen, Kants Begründung der Ethik, Berlino 1877; P. Menzer, Kants Ethik in ihren Grundlehren, Halle 1924; per l'immanentismo: G. Gentile, Teoria generale dello spirito come atto puro, Firenze 1916; per la teoria dei valori: M. Scheler, Der Formalismus in der Ethik und die materiale Wertethik, Halle 1916; N. Hartmann, Ethik, Berlino 1926; per lo spiritualismo esistenziale: L. Lavelle, Traité des valeurs, Parigi 1951-55.

A. R. Motte, O.P.

Moral duty initiates a dialogue between the human person and God, and among different human persons. The human person perceives their dignity and responsibility: they conceive their nature as a duty to be, their life as a divine vocation toward the possession of God. They recognize themselves as a participant and cooperator in the very divine will, for without their free assent, without their continual effort of choice and transcendence, the eternal law of God cannot be realized in them or in society (Sum. Theol., 1ᵃ-2ᵃᵉ, q. 19, aa. 1-2). They feel that God, through His Providence, sustains the fragility of their nature; they know that every good act becomes worthy of merit and that God will respond with just sanction to their faithful correspondence to duty. With other human persons, they establish a reciprocity of duties and rights, according to a positive order that expresses, in the changing circumstances of time and space, the absoluteness of natural law. In the hypothesis of a supernatural order, natural law itself imposes upon the human person the duty to accept revealed law: the dialogue between man and God then becomes more perfect through the operative power of the theological virtues, and human society is Communion of Saints (v.). personalism (v.) develops these principles, applying them especially to social life and pedagogy.

The etymological meaning of the word obligation, however, is not that of a legal duty but, as inferred from the Roman expression obligatio, of a bond or tie. This etymology can be explained historically. If one considers the evolution of obligatio, it is evident that, even in a historical phase of Roman law, non-performance exposed the debtor to liability not only of a patrimonial nature but also personal; in legal proceedings, the creditor’s action—termed actio in personam—was directed against the debtor’s physical person and culminated in the latter’s imprisonment during enforcement. It is therefore conceivable that in the earliest period of Roman law, the debtor or his guarantor—the sponsor—were burdened not so much by a legal duty as by a bond. The lack of sources prevents knowing precisely the nature of this bond; some authors believe it was a material bond, others an ideal one. Although the bond ultimately served to guarantee the relationship between creditor and debtor regarding performance, the term obligatio does not refer to this relationship: it expresses the personal state of subjection that, with respect to the creditor, affects the debtor and exceptionally limits his sphere of freedom. While such conjectures may be legitimate regarding the earliest Roman law, it is undeniable that in the obligatio of classical law, the subjection of the debtor’s person to that of the creditor is but a distant memory echoed only in terminology. Although this has been disputed, the definitions contained in Justinian’s Institutes (3, 13 pr.): Obligatio est vinculum iuris quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura, and in the Digest (44, 7, 3 pr.): Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitatem nostram faciat, sed ut alium nobis obstringet ad dandum aliquid vel faciendum vel praestandum, show that the vinculum iuris by which the debtor is bound ad dandum aliquid vel faciendum vel praestandum is nothing other than the duty to perform. This duty is then formally expressed in the assertion that, in legal proceedings, the creditor asserts his right having as its object a dare facere praestare oportere, in which the necessitas incumbent upon the debtor regarding dare, facere, and praestare—that is, performance in its various forms—is expressed.

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2. The constitutive elements of obligation. The subjects; the vinculum iuris. - The elements of an obligation are: the legal bond, the subjects, and the object. The legal bond is the relationship between the creditor, holder of a subjective right regarding performance, and the debtor, who is subject to a corresponding duty. The obligation is, therefore, an intersubjective relation, in which the creditor and the debtor are the active and passive subjects, respectively.

It has been argued that, even in modern law, the vinculum iuris constituting the obligation has the effect of causing a true subjection of the debtor’s person to that of the creditor. Whatever the nature of the vinculum in the primitive Roman obligatio, it is undeniable that today it manifests as a legal duty, to which a subjective right regarding performance corresponds. This means that if the debtor fails to perform, he will be subject to judicial action and, eventually, to condemnation and forced execution on his assets: but the content of the duty underlying the obligation is unenforceable, as its fulfillment depends on the debtor’s will, and the latter’s freedom is not limited merely by the arising of the obligatory relationship. It has also been argued that the obligation is a relationship between the creditor and the debtor’s assets, or between the assets of the debtor and the creditor: in reality, the debtor’s assets are the reference point for the creditor’s action, that is, the entity on which the creditor will be satisfied in case of non-performance, but, in its substantive aspect, the obligation is nothing other than an intersubjective relation, independent of the existence of the subjects’ assets.

The obligatory relationship requires the determination of the subjects who are parties to it, and normally they are determined from its inception: however, it may happen that the subjects are determined at a later time, based on facts or relationships foreseen when the obligation arose. This category includes: a) ambulatory obligations, in which the debtor is whoever is in a certain relationship with a thing (obligationes propter rem, servitus oneris ferendi, etc.); b) bearer instruments, in which only the debtor’s person is determined, while that of the creditor is determined by possession of the document; c) public offers, which are addressed to an indeterminate number of subjects, among whom, through acceptance, the subject who becomes the creditor is determined.

The obligatory relationship may involve either two subjects or a plurality of subjects. The latter case occurs when either a single creditor faces multiple debtors, or, conversely, a single debtor faces multiple creditors; in such cases: a) the obligation may be divided into as many obligations as there are creditors or debtors (divided or simply joint obligations); b) the obligation does not divide because it is indivisible; c) the obligation does not divide, as the will of the parties or the law considers it in its unity (solidary obligations).

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5. Natural obligations

In addition to obligations whose fulfillment is protected by law through action, there are others which, though having patrimonial content and being structurally identical to the former, lack actionability. Consequently, the concept of vinculum iuris ceases to apply to them, and the duty underlying them appears as merely social, ethical, or customary, without rising to the level of a legal duty. Such obligations are termed natural and are distinguished from obligations in the technical sense, being identified with duties of conscience and those imposed by social conventions that have patrimonial content.

In classical Roman law, the typical natural obligation consisted of the debts and credits of slaves, who, lacking legal capacity, could not be subjects of a relationship such as obligatio. In ancient times, the position of filiifamilias was probably analogous; however, they gradually came to be recognized as...

The Latin etymology of obbligazione (obligation) already indicates its meaning: in its essence, it denotes a legal bond. In Roman law, the obligatio naturalis consisted of debts and credits of slaves, who, lacking legal capacity, could not be subjects of a relationship such as obligatio. In ancient times, the position of filiifamilias was likely analogous; however, they gradually came to be recognized as having the capacity to incur civil obligations. In post-classical and Justinian Roman law, the category of obligationes naturales was expanded, and a series of relationships were subsumed under it in which no obligatio arose, but, as was the case for the debts and credits of slaves, the repayment of what was spontaneously fulfilled was excluded (soluti retentio). This is also the typical effect of obbligazione naturale in Italian positive law: it does not impose a coercion to fulfill, but if the naturaliter obligatus spontaneously fulfills, the legal system sanctions such fulfillment by rendering impossible the recovery of what was paid. The soluti retentio, however, is not an effect that the legal system directly connects to the obbligazione naturale, but rather to the spontaneous fulfillment, a subsequent and autonomous act with respect to the obligation itself, which, considered in itself, receives sanction only from the social order. A doctrinal current, however, considers the obbligazione naturale relevant also on the legal plane; it is argued, in particular, that the law, through soluti retentio, shows that it takes into consideration relationships contemplated by other norms (social, ethical, customary), though granting them only a more tenuous protection than that normally connected to the obligatory relationship. The concept of obbligazione naturale is delimited both by that of obbligazione civile and by that of donation, although spontaneous fulfillment has the characteristics of a liberal act: for a obbligazione naturale to exist, the spontaneous fulfillment must not stem from a pure purpose of beneficence or remuneration. Art. 2034 of the Italian Civil Code refers, first and foremost, to moral and social duties; examples of obbligazioni naturali include the obligation extinguished by an unjust acquittal or due to lack of evidence or false oath, the obligation of the residual debt after composition with creditors, the obligation to provide a dowry, the voluntary confirmation and execution of a void donation or testamentary disposition, the obligation of the natural father to provide alimony to unrecognized natural children outside the cases provided for in art. 279 of the Civil Code, etc.

6. The object of the obligation: the prestazione

The creditor's right is directed toward the satisfaction of an interest concerning a good: this good is the prestazione (performance), which represents the object of the obligation. The prestazione consists of a personal element and a patrimonial element. The first is constituted by the debtor's conduct, the second by the result of said conduct: thus, in obligations di dare (to give), the prestazione consists of the debtor's conduct, which has the result of procuring a thing or a right for the creditor; in obligations di fare (to do), it consists of the debtor's conduct that has the effect of procuring for the creditor a utility derived from human labor. Some authors, starting from the premise that the obligation is a bond of the person, see the prestazione in the mere conduct or act of the debtor. Others see the object of the obligation in the result of the conduct, that is, in the due good, which is represented by the thing in obligations di dare, and by the utility produced by human labor in those di fare. Consequently, the prestazione is not conceived as the object of the obligation but as a mere instrument or means suitable for procuring the good.

The requirements of the prestazione are: a) patrimonialità (patrimonial nature). The prestazione must have an economic content, that is, it must be susceptible to patrimonial evaluation. Otherwise, in case of non-fulfillment, the creditor would lack the possibility of satisfying, through judgment, his claim on the debtor's patrimony: the non-fulfillment of the obligation would, consequently, be practically devoid of legal effects and would cease, therefore, to be a legal obligation. However, the prestazione must be distinguished from the creditor's interest in the prestazione, which is also a necessary requirement: patrimonialità is a characteristic of the prestazione considered in itself, while the creditor's interest in the prestazione, provided it is serious and socially appreciable, may also be of a moral, ethical, or affective nature (cf. art. 1174 of the Italian Civil Code: "The prestazione that forms the object of the obligation must be susceptible to economic evaluation and must correspond to an interest, even if non-patrimonial, of the creditor"). b) Possibility. The obligation cannot have as its object an impossible prestazione. Two types of impossibility are distinguished: absolute or objective, and relative. Absolute impossibility occurs when the prestazione cannot be fulfilled not only by the debtor but by anyone due to natural causes (e.g., the prestazione has perished or refers to things that are non in rerum natura), or legal causes (e.g., the prestazione refers to things extra commercium). Relative impossibility occurs when the prestazione cannot be fulfilled for reasons concerning the debtor alone, while it could be fulfilled by others. Only in the first case does the obligation not arise, while in the second it is converted into the prestazione of the id quod interest, that is, compensation representing the creditor's interest in obtaining the original prestazione or the sacrifice incurred to procure it from others. Even in the case of absolute impossibility, when the creditor has ignorantly and without fault been unaware of the impossibility, the obligation arises transformed into the duty to pay damages. The amount of compensation, in this case, does not reflect the creditor's total interest in the original prestazione but is limited only to the so-called interesse negativo (negative interest), that is, the damages and expenses incurred as a result of the trust placed in the debtor's promise. c) Lawfulness. The prestazione must be lawful, that is, it must not be contrary to laws, public order, morality, or public decency. d) Determinateness. Finally, the prestazione must be determined or, at least, determinable based on criteria or elements established in advance. Otherwise, the prestazione itself would become vague, allowing the debtor to limit it to an entity of no value.

7. Solidary obligations

These occur when, the prestazione being unique, there is a plurality of subjects, and the relationship is constituted in such a way that, if there are multiple creditors (active solidarity), each of them has the right to collect the whole as if he were the sole creditor, or, if there are multiple debtors (passive solidarity), each of them is bound to perform the whole as if he were the sole debtor. In the case of active solidarity, fulfillment made to one of the creditors releases the debtor also toward the other creditors; in the case of passive solidarity, fulfillment by one of the debtors releases the others as well. In internal relations, the solidary obligation is divided among the various creditors or debtors, unless it was contracted in the exclusive interest of one of them: the debtor who has paid may then recover from the co-debtors the share due from each. Solidarity, which may be based on the will of the parties or on the law and is, in general, presumed where there is a plurality of active or passive subjects, is inspired by a strengthening and greater protection of the creditor's right.

8. Divisible and Indivisible Obligations

Obligations are divisible or indivisible depending on whether the performance that constitutes their object is or is not susceptible to being fractioned. Divisible are performances of giving, whether they concern a thing or a right susceptible to being divided into intellectual shares (e.g., property, usufruct, emphyteusis). Performances of giving are, on the contrary, indivisible when they concern a right not susceptible to being fractioned (e.g., servitude, pledge, mortgage). The performance of doing is indivisible when it consists of an act appreciated in its unity, or leads to a result considered as a whole: it is, instead, divisible when it consists of a continuous activity or leads to work results evaluated by quantity. The performance of not doing is indivisible, as by its nature it does not even partially entail the completion of the prohibited act. The indivisibility of the obligation, besides being due to objective characteristics of the performance, may also exist for performances that would not inherently entail it, when it has been agreed upon by the parties or imposed by law. The effect of a divisible obligation is that, where there are multiple debtors or multiple creditors, each debtor is bound to perform only his share of the debt, and each creditor may claim only his share of the credit. For indivisible obligations, the principle applies that each debtor is bound for the totality, subject to recourse against the co-debtors for the reimbursement of the shares due by each, and that each creditor may demand the entire execution of the obligation, with the duty, however, to compensate the other creditors for their shares.

9. Alternative, Facultative, and Generic Obligations

Alternative obligations are those in which two or more performances are included in the bond: only one of them is due, and the obligation is extinguished when it is fulfilled. The salient moment of these obligations is constituted by the so-called concentration, by virtue of which, at the time of performance or even before, based on established criteria, the performance due is determined. Facultative obligations are those that provide for a single performance, but in which the debtor may free himself from the bond by performing a different performance.

Generic obligations are those in which the performance is not identified ab initio, but is indicated only by the genus to which it belongs, so that a certain quantity of the indicated genus must be performed. The most frequent type of generic obligation is that of the obligation to give a certain determined or determinable quantity of things belonging to a genus.

10. The Sources of Obligation

Sources of obligation are those legal facts that have as their consequence the arising of the obligatory bond. In Roman law, for the most ancient period, they were the contract and the delict (Gaius, Institutions, 3, 88). Subsequently—it is debated whether by Gaius himself or by a post-classical author—it was considered that there existed facts capable of producing obligations not reducible to either contract or delict; thus arises the category of variae causarum figurae, which appears in a passage of the Digest (44, 7, 1) attributed to Gaius. In the Institutions of Justinian (3, 13, 2), while contract and delict remain as sources of obligation, the variae causarum figurae are eliminated, and two new sources take their place: the quasi-contract and the quasi-delict.

The Italian Civil Code of 1865, in art. 1097, enumerated as sources of obligation « the law, the contract, the quasi-contract, the delict, and the quasi-delict ». That is, the sources of obligation were distinguished, following the example of the French code, according to whether they stemmed from the law or from a lawful act of man, as in the contract and the quasi-contract, or an unlawful one, as in the delict and the quasi-delict. This system substantially reproduced that of the Justinian Institutions, adding the law, that is, the legal order, which, however, is in reality the primary source of every obligation and, in general, of any legal fact, and stands on a different plane from the contract, the delict, the quasi-contract, and the quasi-delict, which presuppose II.
In the current Civil Code, instead, there has been a return to the tripartite division found in D. 44, 7, 1. Indeed, art. 1173 states: « obligations derive from contract, from unlawful act, or from any other act or fact capable of producing them in conformity with the legal order ». The modification made by the current legislator was undoubtedly felicitous, since, by eliminating the law as a source of obligation, it is intended to emphasize that, alongside the contract and the delict, there exist various factispecies (variae causarum figurae), not reducible to those and not reducible to a common denominator, which generate obligations. These factispecies, being entirely anomalous, are not susceptible to being framed within rigid categories such as the quasi-contract and the quasi-delict.

11. Performance

It is the end to which the obligation tends and consists in delivering the performance to the creditor: the legal act by which the performance reaches the creditor is called payment or solutio.

The recipient of the payment is the creditor, unless he is incapable of disposing or is a person affected by seizure. Payment must be made to a different person if the creditor has authorized others to receive it, or if the law or judicial authority has otherwise disposed.

The performance must be executed by the debtor: however, it may be rendered by a third party if the creditor has not relied on the personal qualities of the debtor, as, for example, occurs in certain obligations of doing. The third party, who has validly made the payment, succeeds to the legal position of the satisfied creditor, and the same rights that belonged to the creditor are available to him against the debtor.

The time and place in which the performance must be executed vary according to the nature of the obligation, the will of the parties, and the provisions that, in the absence of the latter, the law dictates.

Guarantees of the obligation are, besides the means generally provided by the legal order, the conventional penalty and the earnest money, which are aimed at conventionally and preventively liquidating the amount of damages that would result to the creditor from non-performance. The debtor, alongside the duty to execute the performance, undertakes to pay the creditor a sum greater than the value of the performance if he fails to perform: in this way, the obligation is strengthened, since the danger of having to pay the penalty exerts psychological pressure on the debtor’s will regarding performance.

12. Non-Performance

This occurs when the performance is not rendered in whole or in part. Non-performance, besides resulting from the impossibility of the performance, may derive from the will of the debtor. This circumstance entails the imputability of the debtor, which results in liability for the compensation of damages, which assumes different intensity depending on whether it presupposes the debtor’s conscious will not to perform the obligation (dolus), or merely a lack of diligence (culpa). The debtor incurs liability for the compensation of damages even when a culpable delay in rendering the performance is imputable to him (mora solvendi); and likewise, the creditor incurs liability if a culpable delay in receiving it is imputable to him (mora accipiendi).

BIBL.:
G. PACCHIONI, Delle obbligazioni in generale, in Trattato di diritto civile italiano, diretto da F. Vassalli, vol. IV, t. 1, Torino 1939; F. MESSINEO, Manuale di diritto civile e commerciale, vol. II, Milano 1952; A. CICU, Obbligazioni, in Trattato di diritto civile e commerciale, diretto da A. Cicu e F. Messineo, Milano 1951; R. NICOLÒ, L’adempimento dell’obbligazione, Padova 1936; G. OSTI, Revisione critica della teoria sul rischio e pericolo nelle obbligazioni, in Studi in onore di V. Scialoja, vol. II, Milano 1905; E. BETTI, Teoria generale delle obbligazioni, Milano 1953.

13. The extinction of the obligation

The obligation is extinguished, first and foremost, when it achieves its economic purpose, that is, when the performance reaches the creditor. The most common and normal mode of extinction of the obligation is, therefore, payment. There are, however, other causes capable of extinguishing the obligation, among which the principal ones are: a) Novation, which occurs when a new obligation replaces a previous one that is thereby extinguished. Subjective novation takes place when the new obligation differs from the previous one due to a change in the person of the debtor or the creditor; objective novation occurs when the subjects remain unchanged in the new obligation while the performance changes. A prerequisite for novation is the creditor’s consent, for whom the new obligation serves as fulfillment of the previous one. Necessary requirements for novation are: a pre-existing obligation to which the new one succeeds; a new obligation that extinguishes the old one; the intention to novate (animus novandi). b) Compensation. When a subject is simultaneously debtor and creditor of another, if the debit and credit amounts are of the same measure, they cancel each other entirely; if they are not of the same measure, they cancel each other partially up to the amount of the lesser sum. This phenomenon is called compensation and effects a total or partial extinction of the obligation. Compensation may arise from law, from the will of the parties, or be declared by a judge. For it to take place, it is required that the performances be homogeneous, that is, that they have as their object fungible things, so that they may be substitutable; that the credits be liquid, meaning their existence is uncontested and their amount determined; that said credits be enforceable, that is, that the creditor may demand them in court without any limitation; that the obligations be reciprocal, meaning that a subject is at once creditor and debtor with respect to another. c) Remission. This is an act by which the creditor disposes of his own right, freeing the debtor from the obligatory bond without having received the performance. d) Confusion. A prerequisite for the existence of the obligatory relationship is the existence of two subjects, debtor and creditor. When the positions of debtor and creditor come to be held by the same person, the obligation is extinguished.

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